These days it has become popular with employers to provide their employees with coaching, training, or other professional tuition (for the sake of brevity, let’s couch the notion in a single term: “training”); this trend seems to be on the increase and dictates a growing demand for both internal and external trainings. Supply follows demand, or so at least it should be in the economy the West has defined and taught us to believe in. As a result, the training services market abounds in participants and the competition stiffens between them.
No worries; this entry will not discuss economy, but rather legal issues, or more precisely: copyright law. While in a fight over prospects you must not forget that your service is as good as its quality. And quality is, no doubt about that, determined by contents, substance, or matter you choose to add as a filler. The substantive input gets then scrutinized by attending employees, sponsoring employers and those out there who just might nourish some interest in the quality served, including – safe to say – your competitors.
It surely sounds like a cliché, and a lot like the saying that we are standing on the shoulders of giants, but nowadays no creative works, including those related to or resulting from training activities, occur in a vacuum; they all require the use of or, at least, a reference to the achievements of other authors. Taking into account the specific nature of the training industry, there can be no doubt that this business is particularly exposed to the risk of copyright infringement and the resulting liability.
[Right to quote]
It should be stressed right at the top that works of authorship (literary, musical, film, etc.) are protected by copyright law as of the moment they are fixed, however expressed or represented (in a written, oral, visual, other form). The lawmakers grant a monopoly to use creative works in all fields of exploitation to their author, and also protect the personal relationship as between an author and her or his work.
This monopoly is by no means absolute, and it may be subjected to certain limitations, such as those falling into a somewhat broad and general category of “fair use of protected works”. An example of fair use is the so-called “right to quote”, which can be described as a form of inroad on exclusive rights of the author, yet condoned by law.
The right to quote, as regulated by the Polish legislator, allows you to cite in works constituting an independent whole (i) excerpts of disseminated works, or (ii) minor works in full, to the extent justified by explanation, critical analysis, teaching or genre specificity. The right to quote has solid constitutional grounds, due to a justified belief that it enables implementation of the idea of freedom of expression.
[Source of quote]
Exercise of the right to quote is independent of the type or category of the work (literary, musical, film, other) or the subject matter of related rights, as long as our source has already been published or otherwise revealed with the consent of its author – or else we risk liability for infringement of the right to privacy, of reputation, or violation of the secrecy of correspondence.
What is important, the very work of authorship used in the exercise of the right to quote must be reproduced virtually to the letter, no changes or highlights permitted. At this point, however, two comments must be made for the sake of clarity; firstly, the cited source may be nothing more than just a component of, and must be clearly distinguished within, the new whole. Secondly, it is acceptable to paraphrase, that is to present in a new form a fragment of another person’s work, provided that the paraphrased source and its author are duly designated.
[Size of quote]
The right to quote is subject to considerations of size and scope of someone else’s work as used in the currently created presentation or other training material. The question of just how much of another person’s work may be used to this end is complex in the sense that neither legislature, nor jurisprudence, nor even doctrine has authoritatively established any meaningful quantitative criteria. It is also impossible to generally determine how often, within a single training, it is permitted to refer to the same source.
However, it must be ensured that the quoted works play only a subordinate role in relation to your training material. Certainly you must not limit your contribution as the author of any training material to a mere act of quoting, without any creative input on your part.
It is worth noting that the Supreme Court stated in its judgment of November 23, 2004 (I CK 232/04, OSNC 2005 No. 11, item 195) that „even quoting of another person’s work in its entirety is permissible if made as per Article 29 paragraph 1 of the copyright law, providing the cited work is in such proportion to one’s own creative contribution that there is no doubt that one’s own work has been created”. It is also unacceptable to use excerpts from another’s work of authorship to such an extent that the quotation serves as a perfect replacement for the quoted source.
[Aim of quote]
Equally important to our considerations is our objective in the exercise of the right to quote. Very much akin to the EU regulations and those contained in the Berne Convention, the Polish Act on Copyright and Related Rights Act allows quotation when it is carried out for the purposes of explanation, critical analysis, teaching, and to the extent justified by the specific genre of creative activity (parody may serve as an example of such genre).
In practice, of course, the use of a single excerpt may serve multiple purposes simultaneously. And so it happens in the case of training materials, where explanatory and educational considerations come to the fore, though their contribution in the end result may vary from project to project. However, in any case, keep in mind that the right to quote is an institution defined by the statutory purposes it may serve, and thus the right to quote will not justify infringement of copyright monopoly if exercised out of sheer laziness or penchant for effect.
Finally, it is worth noting that the right to quote can also be exploited in the course of your professional, business activity, or where your employee engages in creative works. It may be of import to you that the commercial nature of your activity or like use of the work with quotes in it does not preclude exercise of the type of fair use as discussed here, and does not demand remuneration for the author of the quoted source.
It should be recalled for emphasis that the right to quote is an exception to the rule which otherwise allocates copyright monopoly squarely to authors of creative works, and that exceeding the limits set by the legislator may result in damages and even criminal prosecution. You’d be better off with a lawyer by your side somewhere along the way, don’t you think?